Friday, May 30, 2008

In Atlantic v. Andersen, both sides have filed objections to the Magistrate Judge's attorneys fee award of $107,834, the RIAA saying that the amount should not have exceeded $62,000, Ms. Andersen saying that the award should be multiplied due to the difficulty in finding counsel willing to take on such a case.

7 comments:

"Plaintiffs are recording companies that own or control exclusive rights to copyrights insound recordings. Collectively, Plaintiffs face a massive problem of digital piracy over theInternet. Indeed, the United States Supreme Court has characterized the magnitude of onlinepeer-to-peer (“P2P”) piracy as infringement “on a gigantic scale.” Metro-Goldwyn-MayerStudios, Inc. v. Grokster Ltd, 545 U.S. 913, 940 (2005). P2P users who disseminate (upload) andcopy (download) copyrighted material without authorization of the copyright holder violate theCopyright Act. Id. at 918-924.It is in this context that Plaintiffs brought the current copyright infringement actionagainst Andersen on June 24, 2005. In their Complaint, Plaintiffs alleged that Anderseninfringed (1) their exclusive rights to copy certain of their copyrighted sound recordings by usingan online media distribution system to download the copyrighted sound recordings through theInternet to her computer hard drive; and (2) their exclusive rights to distribute such copyrightedsound recordings by using an online media distribution system to distribute them over theInternet to the millions of others who use P2P networks. (Doc. No. 1 at ¶ 13.)After limited discovery, Plaintiffs determined that there were the inconsistencies inevidence in this case that would have made it difficult for Plaintiffs to prevail at trial. On the onehand, Plaintiffs detected infringement through a computer attached to Andersen’s Internetaccount in her home. Andersen’s Internet Service Provider, Verizon Internet Services, Inc.,identified the account as belonging to Andersen and then re-confirmed its identification ofAndersen on two separate occasions. Moreover, Andersen admitted that she had installed anonline media distribution system onto her computer for a period of time. In addition, many ofthe recordings that were being distributed from the computer attached to Andersen’s Internetaccount were consistent with Andersen’s musical taste. Finally, there is a connection betweenthe user name at issue, “gotenkito,” and Andersen’s daughter who, according to at least onewitness, is a fan of the Dragonball Z anime series from which the name derives. All of thisevidence pointed to Andersen as the infringer in this case. On the other hand, a forensicinspection of Andersen’s computer hard drive proved to be inconsistent and inconclusive,because digital evidence of the infringing sound recordings could not be found, notwithstandingthe facts set forth above. Nor did the depositions that were taken in this case help resolve theseinconsistencies. In light of the foregoing, Plaintiffs decided, in good faith, to dismiss theirclaims against Andersen with prejudice. (Doc. No. 129.)

Hello?What the heck has the whining of label plaintiffs and their lawyers about their facing of their own extiction and the scale of copyrightinfringement via p2p has to do with the fact that they have to pay the prevailing party Andersen?!

These RIAA lawyer guys are so full of [Comment policy Rule 2 violation] it is sickening!

From what I can tell, Tanya's side is much more believable than the RIAA's side.

Continued refusal to end the case even when evidence was presented (edited from original wording) that their case was mis-targeted indicates to me that the awards indeed need to be MUCH higher than they were instead of lower.

I like this part" inconsistent and inconclusive,because digital evidence of the infringing sound recordings could not be found"

so if there is evidence of recordings their guilty, if there is no evidence , their not not guilty cause it's inconclusive........ hmm is that lawyer speak or industry speak for "we don't want to pay" . I can definetly understand them not wanting to pay people they have sued, after all they don't really like paying their artists either.

I think this sums up the RIAA attitude:Had Plaintiffs’ claims for copyright infringement been adjudicated on the merits, the successful defense of the claims would have required Andersen to establish either (1) that Plaintiffs did not own the copyrights at issue, or (2) that she did not engage in any of the exclusive activities reserved for Plaintiffs as the owners of the copyrights at issue. See Feist Pub., Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991).

a. The RIAA acts as if there really was infringement, and that they just decided not to persue litigation.b. The RIAA applies the wrong standard - they're claiming that Plaintiff must show (2) that she didn't engage in exclusive activities reserved for the RIAA. In fact, that is THEIR standard of proof. She could argue all sorts of defenses. For example, maybe Plaintiffs freely distributed a file with a license for duplication and distribution. Maybe Plaintiffs were "misusing" their copyrights.

This type of language clearly indicates the misapplication/fundimental misunderstanding of law of the RIAA.

Thanks Ray for putting up that longer quote from the initialy responsible judge in that case the parties here argue about fees for.

Comparing the judges quotes and the plaintiffs recollection of the events in their objections here at issue, one can easily get the impression the plaintiffs(lawyers) are talking about some different case in their papers!

Are they living in some kind of parallel universe if they truely believe what they wrote in that filing?!

"[P]laintiffs unreasonably rejected or sought to suppress evidence to the extent it tended to exonerate defendant, such as the expert's report concerning the examination of defendant's computer hard drive or her own statements about who had access to her computer. [W]hen plaintiffs dismissed their claims in June 2007, they apparently had no more material evidence to support their claims than they did when they first contacted defendant in February 2005.....Whatever plaintiffs' reasons for the manner in which they have prosecuted this case, it does not appear to be justified as a reasonable exploration of the boundaries of copyright law.....In this case, [P]laintiffs dismissed their claims before any rulings on any significant legal issues under the Copyright Act, or the factual issues associated with plaintiffs' claim. Choosing that course, on this record, should be deterred in light of its potential chilling effect on the public's access to creative works. If this were to become a more typical course in prosecuting the type of allegations faced by defendant, it is reasonably foreseeable that members of the public would be more hesitant to use the Internet to share creative works in general, regardless of whether their specific conduct violated copyright law or occupied an area yet to be addressed by copyright law. Copyright holders generally, and these plaintiffs specifically, should be deterred from prosecuting infringement claims as plaintiffs did in this case. Plaintiffs exerted a significant amount of control over the course of discovery, repeatedly and successfully seeking the court's assistance through an unusually extended and contentious period of discovery disputes. Nonetheless, after ample opportunity to develop their claims, they dismissed them at the point they were required to produce evidence for the court's consideration of the merits..... this case provides too little assurance that a prosecuting party won't deem an infringement claim unsupportable until after the prevailing defendant has been forced to mount a considerable defense, and undergo all that entails, including the incurring of substantial attorney fees. (Emphasis supplied)"-Hon. Donald C. AshmanskasMagistrate JudgeDistrict of OregonSeptember 21, 2007Atlantic v. Andersen2008 WL 185806

I am a business lawyer in New York City, practicing at Ray Beckerman, P.C.. The purpose of this site is to collect and share information about the wave of sham "copyright infringement" lawsuits started by four large record companies, and other areas of concern to digital online copyright law, and to internet law in general. -Ray Beckermanbeckermanlegal.com(Attorney Advertising)

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2." -Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove